ENROLLED

COMMITTEE SUBSTITUTE

FOR

H. B. 2500

(By Delegates Thompson, Ryan, J. Martin,

Stalnaker, Tillis, Amores and Pulliam)



[Passed March 9, 1996; in effect ninety days from passage.]



AN ACT to repeal sections one-a and one-b, article five, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections one, two, ten, seventeen and eighteen of said article; and to further amend said article by adding thereto two new sections, designated sections nineteen and twenty, all relating to juvenile proceedings; definitions which are used in this article; jurisdiction of courts in juvenile proceedings; constitutional guarantees for juveniles; hearings, evidence and transcripts of juvenile proceedings; waiver and transfer of juvenile proceedings from the juvenile jurisdiction to the criminal jurisdiction of the courts; confidentiality of juvenile records; expungement of juvenile records; prohibiting discrimination against persons who have been involved in juvenile proceedings whose records have been expunged; juvenile after-care plans; and criminal penalties.

Be it enacted by the Legislature of West Virginia:
That sections one-a and one-b, article five, chapter forty- nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that sections one, two, ten, seventeen and eighteen of said article be amended and reenacted; and that said article be further amended by adding two new sections, designated sections nineteen and twenty, all to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-1. Definitions.
(a) As used in this article, the term "adult" means a person who is at least eighteen years of age.
(b) As used in this article, the term "child" means a person who has not attained the age of eighteen years, or a person who is otherwise subject to the juvenile jurisdiction of a court pursuant to this article.
(c) As used in this article, the term "extrajudicial statement" means any utterance, written or oral, which was made outside of court.
(d) As used in this article, the term "juvenile" shall have the same meaning as the term "child."
(e) As used in this article, the term "res gestae" means a spontaneous declaration made by a person immediately after an event and before the person has had an opportunity to conjure a falsehood.
(f) As used in this article, the term "violation of a traffic law of West Virginia" means a violation of any provision of chapters seventeen-a, seventeen-b, seventeen-c or seventeen-d of this code except a violation of chapter seventeen-c, article four, sections one and two (hit and run) or of chapter seventeen-c, article five, sections one (negligent homicide), two (driving under the influence of alcohol, controlled substances or drugs) or three (reckless driving).

§49-5-2. Juvenile jurisdiction of circuit courts, magistrate courts and municipal courts; constitutional guarantees; hearings; evidence and transcripts.

(a) The circuit court shall have original jurisdiction of proceedings brought under this article.
(b) If during a criminal proceeding in any court, it is ascertained or appears that the defendant is under the age of nineteen years and was under the age of eighteen years at the time of the alleged offense, the matter shall be immediately certified to the juvenile jurisdiction of the circuit court. The circuit court shall assume jurisdiction of the case in the same manner as cases which are originally instituted in the circuit court by petition
(c) Notwithstanding any other provision of this article, magistrate courts shall have concurrent juvenile jurisdiction with the circuit court for a violation of a traffic law of West Virginia or for any violation of chapter twenty of this code. Juveniles shall be liable for punishment for violations of such laws in the same manner as adults except that magistrate courts shall have no jurisdiction to impose a sentence of incarceration for the violation of such laws.
(d) Notwithstanding any other provision of this article, municipal courts shall have concurrent juvenile jurisdiction with the circuit court for a violation of any municipal ordinance regulating traffic or for any municipal curfew ordinance which is enforceable. Municipal courts may impose the same punishment for such violations as a circuit court exercising its juvenile jurisdiction could properly impose, except that municipal courts shall have no jurisdiction to impose a sentence of incarceration for the violation of such laws.
(e) A juvenile may be brought before the circuit court for proceedings under this article only by the following means:
(1) By a juvenile petition requesting that the juvenile be adjudged neglected or delinquent;
(2) By certification or transfer to the juvenile jurisdiction of the circuit court from the criminal jurisdiction of the circuit court, from any foreign court, or from any magistrate court or municipal court in West Virginia; or
(3) By a warrant, capias or attachment which charges a juvenile with an act of delinquency, is issued by a judge, referee or magistrate, and is returnable to the circuit court.
(f) If a juvenile commits an act which would be a crime if committed by an adult, and the juvenile is adjudged a delinquent for such act, the jurisdiction of the court which adjudged the juvenile a delinquent shall continue until the juvenile becomes twenty-one years of age. The court shall have the same power over the person that it had before he or she became an adult, and shall have the further power to sentence the person to a term of incarceration which cannot exceed six months. This authority shall not preclude the court from exercising criminal jurisdiction over the person if he or she violates the law after becoming an adult or if the proceedings have been transferred to the court's criminal jurisdiction pursuant to section ten of this article.
(g) A juvenile shall be entitled to be admitted to bail or recognizance in the same manner as an adult and shall have the protection guaranteed by Article III of the West Virginia Constitution.
(h) A juvenile shall have the right to be effectively represented by counsel at all stages of proceedings under the provisions of this article. If the juvenile or the juvenile's parents or custodian executes an affidavit showing that the juvenile cannot afford an attorney, the court shall appoint an attorney, who will be paid in accordance with article twenty-one, chapter twenty-nine of this code.
(i) In all proceedings under this article, the juvenile shall have a meaningful opportunity to be heard. This includes the opportunity to testify and to present and cross-examine witnesses. The general public shall be excluded from all such proceedings except persons whose presence is requested by the parties and other persons whom the circuit court determines have a legitimate interest in the proceedings.
(j) At all adjudicatory hearings held under this article, all procedural rights afforded to adults in criminal proceedings shall be applicable unless specifically provided otherwise in this chapter.
(k) At all adjudicatory hearings held under this article, the rules of evidence applicable in criminal cases shall apply, including the rule against written reports based upon hearsay.
(l) Extrajudicial statements, other than res gestae, which were made by a juvenile under fourteen years of age to law- enforcement officials or while in custody shall not be admissible unless such statements were made in the presence of the juvenile's counsel. Extrajudicial statements, other than res gestae, which were made by a juvenile who is at least fourteen years of age to law-enforcement officials or while in custody shall not be admissible unless such statements were made in the presence of the juvenile's counsel or in the presence of, and with the consent of, the juvenile's parent or custodian who has been fully informed regarding the juvenile's right to a prompt detention hearing, the juvenile's right to counsel, including appointed counsel if the juvenile cannot afford counsel, and the juvenile's privilege against self-incrimination.
(m) A transcript or recording shall be made of all transfer, adjudicatory and dispositional hearings. At the conclusion of any hearing, the circuit court shall make findings of fact and conclusions of law, both of which shall appear on the record. The court reporter shall furnish a transcript of the proceedings at no charge to any indigent juvenile who seeks review of any proceeding under this article if an affidavit is filed stating that neither the juvenile nor the juvenile's parents or custodian have the ability to pay for the transcript.
§49-5-10. W
aiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed at least eight days prior to the adjudicatory hearing and with reasonable notice to the child, the parents, guardians or custodians of the child and the child's counsel, the court shall conduct a hearing to determine if juvenile jurisdiction should or must be waived and the proceeding transferred to the criminal jurisdiction of the court. Any motion filed in accordance with this section shall state, with particularity, the grounds for the requested transfer, including the grounds relied upon set forth in subsections (d), (e), (f) and (g) of this section and the burden shall be upon the state to establish such grounds by clear and convincing proof. Any hearing held under the provisions of this section shall be held within seven days of the filing of the motion for transfer unless it is continued for good cause.
(b) No inquiry relative to admission or denial of the allegations of the charge or the demand for jury trial shall be made by or before the court until a decision shall have been made relative to whether the proceeding is to be transferred to criminal jurisdiction.
(c) The court shall transfer a juvenile proceeding to criminal jurisdiction if a child who has attained the age of fourteen years shall make a demand on the record to be transferred to the criminal jurisdiction of the court. Such cases may then be referred to a magistrate for trial, if otherwise cognizable by a magistrate.
(d) The court shall transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that:
(1) The child is at least fourteen years of age and has committed the crime of treason under section one, article one, chapter sixty-one of this code; the crime of murder under sections one, two and three, article two of said chapter; the crime of robbery involving the use or presenting of firearms or other deadly weapons under section twelve of said article; the crime of kidnapping under section fourteen-a of said article; the crime of first degree arson under section one, article three of said chapter; or the crime of sexual assault in the first degree under section three, article eight-b of said chapter; or
(2) The child is at least fourteen years of age and has committed an offense of violence to the person which would be a felony if the child were an adult: Provided, That the child has been previously adjudged delinquent for the commission of an offense of violence to the person which would be a felony if the child were an adult; or
(3) The child is at least fourteen years of age and has committed an offense which would be a felony if the child were an adult: Provided, That the child has been twice previously adjudged delinquent for the commission of an offense which would be a felony if the child were an adult.
(e) The court may transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the child would otherwise satisfy the provisions of subdivision (1), subsection (d) of this section, but who is younger than fourteen years of age.
(f) The court may, upon consideration of the child's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the child would otherwise satisfy the provisions of subdivision (2) or (3), subsection (d) of this section, but who is younger than fourteen years of age.
(g) The court may, upon consideration of the child's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that:
(1) The child, who is at least fourteen years of age, has committed an offense of violence to the person which would be a felony if the child were an adult; or
(2) The child, who is at least fourteen years of age, has committed an offense which would be a felony if the child were an adult: Provided, That the child has been previously adjudged delinquent for the commission of a crime which would be a felony if the child were an adult; or
(3) The child, who is at least fourteen years of age, used or presented a firearm or other deadly weapon during the commission of a felony; or
(4) The child has committed a violation of the provisions of section four hundred one, article four, chapter sixty-a of this code which would be a felony if the child were an adult involving the manufacture, delivery or possession with the intent to deliver a narcotic drug. For purposes of this subdivision, the term "narcotic drug" shall have the same definition as that set forth in section one hundred one, article one of said chapter.
(h) For purposes of this section, the term "offense of violence" means an offense which involves the use or threatened use of physical force against a person.
(i) If, after a hearing, the court directs the transfer of any juvenile proceeding to criminal jurisdiction, it shall state on the record the findings of fact and conclusions of law upon which its decision is based or shall incorporate such findings of fact and conclusions of law in its order directing transfer.
(j) The child shall have the right to directly appeal an order of transfer to the supreme court of appeals of the state of West Virginia: Provided, That notice of intent to appeal and a request for transcript be filed within ten days from the date of the entry of any such order and the petition for appeal shall be presented to the supreme court of appeals within forty-five days from the entry of such order, and that, in default thereof, the right of appeal and the right to object to such order of transfer shall be waived and may not thereafter be asserted. The provisions of article five, chapter fifty-eight of this code pertaining to the appeals of judgments in civil actions shall apply to appeals under this chapter except as herein modified. The court may, within forty-five days of the entry of the order of transfer, by appropriate order, extend and re-extend the period in which to file the petition for appeal for such additional time, not to exceed a total exten
sion of
sixty days, as in the court's opinion may be
necessary for prepara
tion of the transcript: Provided, however, That the request for such transcript was made by the party seeking appeal within ten days of entry of such order of transfer. In the event any such notice of intent to appeal and request for transcript be timely filed, proceedings in criminal court shall be stayed upon motion of the defendant pending final action of the supreme court of appeals thereon.
§ 49-5-17. Confidentiality of juvenile records.
(a) Records of a juvenile proceeding conducted under this chapter are not public records, and therefore they shall not be disclosed to anyone unless disclosure is otherwise authorized by this section.
(b) Notwithstanding the provisions of subsection (a) of this section, a copy of a juvenile's records shall automatically be disclosed to certain school officials, subject to the following terms and conditions:
(1) Only certain types of juvenile records shall be disclosed. These include and are limited to cases in which:
(A) The juvenile has been charged with an offense which would be a crime if it was committed by an adult; and
(i) The offense involves violence against another person;
(ii) The offense involves possession of a dangerous or deadly weapon; or
(iii) The offense involves possession or delivery of a controlled substance as that term is defined in chapter 60A-1- 101(d) of this code; and
(B) The juvenile case has proceeded to a point where one or more of the following has occurred:
(i) A judge, magistrate or referee has determined that there is probable cause to believe that the juvenile committed the offense as charged;
(ii) A judge, magistrate or referee has placed the juvenile on probation for the offense;
(iii) A judge, magistrate or referee has placed the juvenile into an improvement period in accordance with section nine, article five, chapter forty-nine of this code; or
(iv) Some other type of disposition has been made of the case other than dismissal.
(2) The circuit court for each judicial circuit in West Virginia shall designate one person to supervise the disclosure of juvenile records to certain school officials.
(3) If the juvenile attends a West Virginia public school, the person designated by the circuit court shall automatically disclose all records of a juvenile case to the county superintendent of schools in the county in which the juvenile attends school. The person designated by the circuit court shall also automatically disclose all records of a juvenile case to the principal of the school which the juvenile attends.
(4) If the juvenile attends a private school in West Virginia, the person designated by the circuit court shall determine the identity of the highest ranking person at that school, and shall automatically disclose all records of a juvenile's case to that person.
(5) If the juvenile does not attend school at the time the juvenile's case is pending, the person designated by the circuit court shall not transmit the juvenile's records to any school. However, the person designated by the circuit court shall transmit the juvenile's records to any school in West Virginia which the juvenile subsequently attends.
(6) The person designated by the circuit court shall not automatically transmit juvenile records to a school which is not located in West Virginia. Instead, the person designated by the circuit court shall contact the out-of-state school, inform it that juvenile records exist, and make an inquiry regarding whether the laws of that state permit the disclosure of juvenile records. If so, the person designated by the circuit court shall consult with the circuit judge who presided over the case to determine whether the juvenile records should be disclosed to the out-of-state school. The circuit judge shall have discretion in determining whether to disclose the juvenile records, and shall consider whether the other state's law regarding disclosure provides for sufficient confidentiality of juvenile records, using this section as a guide. If the circuit judge orders the juvenile records to be disclosed, they shall be disclosed in accordance with the provisions of subdivision (7) of this subsection.
(7) The person designated by the circuit court shall transmit the juvenile's records to the appropriate school official under cover of a letter emphasizing the confidentiality of such records and directing the official to consult this section of the code. A copy of this section of the code shall be transmitted with the juvenile's records and cover letter.
(8) Juvenile records must be treated as absolutely confidential by the school official to whom they are transmitted, and nothing contained within the juvenile's records shall be noted on the juvenile's permanent educational record. The juvenile records are to be maintained in a secure location and are not to be copied under any circumstances. However, the principal of a school to whom the records are transmitted shall have the duty to disclose the contents of those records to any teacher who teaches a class in which the subject juvenile is enrolled and to the regular driver of a school bus in which the subject juvenile is regularly transported to or from school. Furthermore, any school official to whom the juvenile's records are transmitted may disclose the contents of such records to any adult within the school system who, in the discretion of the school official, has the need to be aware of the contents of those records.
(9) If for any reason a juvenile ceases to attend a school which possesses that juvenile's records, the appropriate official at that school shall seal the records and return them to the circuit court which sent them to that school. If the juvenile has changed schools for any reason, the former school shall inform the circuit court of the name and location of the new school which the juvenile attends or will be attending. If the new school is located within West Virginia, the person designated by the circuit court shall forward the juvenile's records to the juvenile's new school in the same manner as provided in subdivision (7) of this subsection. If the new school is not located within West Virginia, the person designated by the circuit court shall handle the juvenile records in accordance with subdivision (6) of this subsection.
If the juvenile has been found to be not guilty of an offense for which records were previously forwarded to the juvenile's school on the basis of a finding of probable cause, the circuit court shall not forward those records to the juvenile's new school. However, this shall not affect records related to other prior or future offenses. If the juvenile has graduated or quit school, or will otherwise not be attending another school, the circuit court shall retain the juvenile's records and handle them as otherwise provided in this article.
(10) Under no circumstances shall one school transmit a juvenile's records to another school.
(11) Under no circumstances shall juvenile records be automatically transmitted to a college, university or other post-secondary school.
(12) No one shall suffer any penalty, civil or criminal, for accidentally or negligently attributing certain juvenile records to the wrong person. However, such person shall have the affirmative duty to promptly correct any mistake that he or she has made in disclosing juvenile records when the mistake is brought to his or her attention. A person who intentionally attributes false information to a certain person shall be subjected to both criminal and civil penalties, in accordance with subsection (d) of this section.
(13) If a judge, magistrate or referee has determined that there is probable cause to believe that a juvenile has committed an offense but there has been no final adjudication of the charge, the records which are transmitted by the circuit court shall be accompanied by a notice which clearly states in bold print that there has been no determination of delinquency and that our legal system requires a presumption of innocence.
(c) Notwithstanding the provisions of subsection (a) of this section, juvenile records may be disclosed, subject to the following terms and conditions:
(1) If a juvenile case is transferred to the criminal jurisdiction of the circuit court, the juvenile records of that particular case may be disclosed if the juvenile who is transferred fails to timely file an appeal of the transfer order; files a timely appeal of the transfer order but the Supreme Court of Appeals of West Virginia refuses to hear the appeal; or files a timely appeal of the transfer order which is affirmed by the Supreme Court of Appeals of West Virginia. All records of the case shall be open to public inspection following any of these occurrences. These records shall be handled pursuant to all of the same strictures, guidelines and requirements of law which exist regarding disclosure of records for adults.
(2) Upon a written petition and pursuant to a written order, the circuit court may permit disclosure of juvenile records to:
(A) A court which has juvenile jurisdiction and has the juvenile before it in a juvenile proceeding;
(B) A court exercising criminal jurisdiction over the juvenile which requests such records for the purpose of a presentence report or disposition proceeding;
(C) The juvenile, the juvenile's parents or legal guardian, or the juvenile's counsel;
(D) The officials of a public institution to which the juvenile is committed if they require such records for transfer, parole or discharge; or
(E) A person who is conducting research. However, juvenile records shall be disclosed for research purposes only upon the condition that information which would identify the subject juvenile or the juvenile's family shall not be disclosed.
(d) Any person who willfully violates this section shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than one thousand dollars, incarcerated not more than six months, or be both fined and incarcerated. Furthermore, a violator of this section shall be liable for damages in the amount of three hundred dollars or the actual amount of damages, whichever is greater.
§49-5-18. Expungement of juvenile records.
(a) One year after the juvenile's eighteenth birthday, or one year after personal or juvenile jurisdiction has terminated, whichever is later, the records of a juvenile proceeding conducted under this chapter, including, but not limited to, law-enforcement files and records, shall be expunged by operation of law.
(b) To expunge juvenile records, they shall be returned to the circuit court in which the case was pending and be kept in a separate confidential file. The records shall be physically marked to show that they have been expunged and shall be securely sealed and filed in such a manner that no one can determine the identity of the juvenile.
(c) Expunged records cannot be opened except upon order of the circuit court.
(d) Expungement of juvenile records has the legal effect of extinguishing the offense as if it never occurred.
(e) The records of a juvenile convicted under the criminal jurisdiction of the circuit court pursuant to subdivision (1), subsection (d), section ten of this article shall not be expunged.
(f) Any person who willfully violates this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, incarcerated not more than six months, or be both fined and incarcerated. Furthermore, a violator of this section shall be liable for damages in the amount of three hundred dollars or the actual amount of damages, whichever is greater.
§49-5-19. Discrimination prohibited.

(a) No individual, firm, corporation or other entity shall discriminate against any person in any manner due to that person's prior involvement in a proceeding under this article if that person's records have been expunged pursuant to the provisions of this article. This includes, but is not limited to, discrimination relating to employment, housing, education, obtaining credit, and contractual rights.
(b) Any person who willfully violates this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, incarcerated not more than six months, or be both fined and incarcerated. Furthermore, a violator of this section shall be liable to the person who has been discriminated against for damages in the amount of three hundred dollars or the actual amount of damages, whichever is greater.
§49-5-20. After-care plans.
(a) At least forty-five days prior to the discharge of a juvenile from any institution or facility to which the juvenile was committed pursuant to subdivision (5), (6) or (7) of subsection (b), section thirteen of this article, the director of the institution or facility shall forward a copy of the juvenile's proposed after-care plan to the circuit court which committed the juvenile. A copy of the plan shall also be sent to: (1) The juvenile's parents or legal guardian ; (2) the juvenile's lawyer; (3) the juvenile's probation officer or community mental health center professional; (4) the prosecuting attorney of the county in which the original commitment proceedings were held; and (5) the principal of the school which the juvenile will attend. The plan shall have a list of the names and addresses of these persons attached to it.
(b) The after-care plan shall contain a detailed description of the education, counseling and treatment which the juvenile received while at the institution or facility, and it shall also propose a plan for education, counseling and treatment for the juvenile upon the juvenile's discharge. The plan shall also contain a description of any problems the juvenile has, including the source of those problems, and it shall propose a manner for addressing those problems upon discharge.
(c) Within twenty-one days of receiving the plan, the juvenile's probation officer or community mental health center professional shall submit written comments upon the plan to the circuit court which committed the juvenile. Any other person who received a copy of the plan pursuant to subsection (a) of this section may submit written comments upon the plan to the circuit court which committed the juvenile. Any person who submits comments upon the plan shall send a copy of those comments to every other person who received a copy of the plan .
(d) Within twenty-one days of receiving the plan, the juvenile's probation officer or community mental health center professional shall contact all persons, organizations and agencies which are to be involved in executing the plan to determine whether they are capable of executing their responsibilities under the plan and to further determine whether they are willing to execute their responsibilities under the plan.
(e) If adverse comments or objections regarding the plan are submitted to the circuit court, it shall, within forty-five days of receiving the plan, hold a hearing to consider the plan and the adverse comments or objections. Any person, organization or agency which has responsibilities in executing the plan, or their representatives, may be required to appear at the hearing unless they are excused by the circuit court. Within five days of the hearing, the circuit court shall issue an order which adopts the plan as submitted or as modified in response to any comments or objections.
(f) If no adverse comments or objections are submitted, a hearing need not be held. In that case, the circuit court shall consider the plan as submitted and shall, within forty-five days of receiving the plan, issue an order which adopts the plan as submitted .
(g) Notwithstanding the provisions of subsections (e) and (f) of this section, the plan which is adopted by the circuit court shall be in the best interests of the juvenile and shall also be in conformity with West Virginia's interest in youth as embodied in subsection (b), section thirteen of this article.
(h) The circuit court which committed the juvenile shall appoint the juvenile's probation officer or community mental health center professional to act as supervisor of the plan. The supervisor shall report the juvenile's progress under the plan to the circuit court every sixty days, or until the circuit court determines that no report or no further care is necessary.